RECORD OF PROCEEDINGS


      IN THE CASE OF


      BOARD DATE:           22 July 2004
      DOCKET NUMBER:   AR2004100484


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Eric N. Andersen              |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general discharge (GD) be upgraded.

2.  The applicant states that when he came back from duty in Germany he
found out that his father had a heart attack.  He states when he asked his
new command for leave he was told no because he was too new to the command,
so he repeatedly went AWOL (absent without leave) to help his family.  He
states that he knows that what he did was wrong but believed it was the
right thing to do at the time.  He states that he would just like to have a
discharge that says honorable.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 9 August 1973, the date of his release from active duty.  The
application submitted in this case is dated 21 October 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that he entered active duty with a three-
year active duty obligation on 6 September 1967.  His first duty assignment
was in Germany from 21 January 1968 through 4 April 1970.

4.  On 13 January 1970 he was advanced to specialist five (E-5).

5.  The record indicates that the applicant was AWOL for the following
periods: 20 May 1970 through 12 October 1970, 18 November 1970 through
30 December 1970, 1 February 1971 through 19 May 1971, 30 July 1971 through
8 July 1973.

6.  Although a DA Form 2627-1 (Record of Proceedings Under Article 15,
UCMJ) is not of record, Headquarters, Army Garrison, Fort Carson, Colorado
Unit Order  Number 134, dated 3 November 1970 shows that as a result of
punishment under Article 15, Uniform Code of Military Justice (UCMJ) he was
reduced to pay grade E-4 and forfeited $113.00 pay per month for two
months.

7.  On 14 January 1971, the applicant received nonjudicial punishment (NJP)
under Article 15, UCMJ, for his 18 November 1970 through 30 December 1970
period of AWOL.  His punishment was reduction to pay grade E-2, forfeiture
of $96.00 pay per month for two months, and restriction to the limits of
the Holding Company Processing Detachment.  The restriction was suspended
for two months.

8.  An Army Personnel Control Facility memorandum, dated 7 August 1973,
states that the applicant was charged with bad time for the periods 1
February 1971 to 19 May 1971 and 30 June 1971 to 8 July 1973.  It states
his reason for discharge was to be due to ETS (expiration of obligated time
in service) and he was to be given a GD.  There is no additional
information or documentation related to the applicant's discharge
processing.

9.  The applicant was released from active duty and transferred to the
Reserve effective 9 August 1973.  He had 3 years and 17 days of creditable
service with 189 day of lost time prior to his ETS date and 848 days after
his ETS date.

10.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under Article 86, for periods
of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant could have been tried by a general court-martial for his
periods of AWOL and if found guilty he could have received a punitive
discharge, confinement, and would have a Federal conviction on his record.
The fact that he was released from active duty without facing the court-
martial and separated for ETS was lenient treatment.

2.  The applicant has provided no documentation that his father was ill,
that he was needed at home, or that his extended periods of AWOL helped his
parents.


3.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time. The character of the discharge is commensurate with
his overall record.

4.  Records show the applicant should have discovered the error or
injustice now under consideration on 9 August 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 8 August 1976.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to file in this case.


BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

_WTM __  __BJE_ __  __ENA__  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of the case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is insufficient
evidence to show that it would be in the interest of justice to excuse the
applicant’s failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            _   Walter T. Morrison____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100484                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040722                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144  Upgrade                            |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]